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Priceline, Orbitz Escape Communications Intercept Claims

May 8, 2018, 7:25 PM

A group of e-merchants including Priceline Group Inc. beat class claims alleging a marketing vendor improperly shared consumer data with the companies without explicit consent.

The U.S. Court of Appeals for the Second Circuit affirmed a lower federal court’s dismissal of the Electronic Communications Privacy Act (ECPA) claims May 7 because plaintiffs failed to allege sufficiently that they didn’t give consent to have their communications shared with Priceline, Buy.com Inc., and Orbitz Worldwide Corp.

The case highlights the question of what level of consent is needed to share information with third-party partners. It also shows that consumers alleging ECPA claims must clearly demonstrate they didn’t consent to data sharing to survive early attempts to dismiss their cases.

ECPA prohibits the interception of electronic communications, but also provides for a safe harbor when such communications are collected with prior consumer consent.

The plaintiffs alleged that post-transaction company Trilegiant Corp. violated ECPA by enrolling consumers in loyalty membership programs with Buy.com, Priceline, Orbitz, and other e-commerce websites without their express consent.

Trilegiant directs consumers to its webpage when completing transactions online. Customers click on a link that takes them to an enrollment page for the Trilegiant program where they would have to turn over personal information such as names, birth dates, and addresses. Consumers generally expect a coupon, rebate, or future discounts for joining the program. Participating in the program costs enrollees between $10 and $20 per month, according to the court.

Consumers must select what to accept the offer and provide their consent to enroll in the program, according to the court. The terms and conditions clearly explained to consumers that their data could be transferred to third parties, including Buy.com, Priceline, and Orbitz, the court ruled.

Because consumers gave consent to Trilegiant when enrolling in the membership program, they also gave permission for the company to further share the data with third party e-merchants, the court ruled. “Such affirmative conduct evinces sufficient consent to an interception of an electronic communication,” the court said.

Trilegiant was represented by Morgan, Lewis & Bockius LLP. The plaintiffs were represented by Shepherd, Finkelman, Miller & Shah LLP and Quantum Legal LLP.

The case is Williams v. Affinion Group LLC, 2d Cir., 16-cv-3292, 5/7/18

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editor responsible for this story: David Mark at dmark@bloomberglaw.com

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